06 Nov ASSUMED GUILTY: The Rape Trial of Brandon Boggess Part 1
I couldn’t believe she was on the line. I grabbed the phone receiver and smashed it to my ear, “Brandy?!”, I said too loudly into the phone. The soft voice on the other end confirmed it was indeed her. Tempering my excitement, the best I can, I quickly ask where she is. She explains that she is walking down the street to a relative’s house. I quickly process in my head that she is approximately seven to eight blocks away from my office right now. “Can you please just stop where you’re at?”, I ask. She tells me she can and I fly out the door, jump into my truck and take off to the intersection she said she was at.
I represent an innocent man accused of a horrendous crime. His name is Brandon Boggess and he is accused of rape in the first degree against two different women on two different occasions. He has told me he is innocent, and I believe him, and the key witness to setting him free might just have called me. I’d been looking for her for months and she just called me. Here we are two weeks from trial, and I finally found her.
The first time I ever met Brandon Boggess was the 9th of February, 2018. I had already made some observations about Brandon before ever laying eyes on him. I had a file, and in that file was not one but two Criminal Informations both accusing him of raping two different women on two different occasions. To make things worse he had a record. His record didn’t include rape, but he did have five prior felony convictions for various property crimes. The one thing that stuck out to me was the date of these accusations. The criminal rape cases were both filed on the same date in January of 2018, but the incidents themselves occurred in 2016. Why the two-year delay I wondered.
Brandon and my meeting would happen on a preliminary hearing conference docket. I was his court-appointed counsel and had just been appointed to his case. A PHC, as we call it, is like a cattle call of sorts. It occurs nearly every Friday in Pittsburg County and it is a court docket that consists of several felony cases that are assigned to one of three judges. There are no hearings that take place on this docket, but instead its an opportunity for the District Attorney’s Office to recommend plea offers and defense attorneys to take those offers to their client and either choose to accept or set the case for usually a preliminary hearing.
When it came to talking to the Assistant District Attorney, Kat Greubel-Ross, in Brandon’s case, she made an offer of thirty-five years for a plea of guilty on both cases. She reasoned that the range of punishment if he was found guilty on either case, was a minimum of twenty years to a maximum of life. In Oklahoma “Life” is calculated at forty-five years. Also, Rape 1st degree is what is referred to as an 85% crime. That means the guilty person must serve 85% of their sentence before they can be considered for parole.
I called into the holding room for Bandon. I didn’t quite expect the little man that emerged from the mass of inmates all clad in bright orange jumpsuits. He was young, thirty years old according to the date of birth noted on his criminal information, but he looked much younger. His head was cleanly shaven and that along with his piercing blue eyes and fully tattooed neckpiece, I assume he was meant to appear intimidating.
We sat together and made some quick introductions. I explained that we wouldn’t be able to talk much that morning because of the nature of the docket itself and the many other clients I had to get to in a short period of time. I let him know the State’s offer, and he snapped up in his chair and said, “We will go to trial Mr. Wagner, I didn’t rape anyone.” I explained that I would set his cases for preliminary hearings and that we would also file a motion to attempt to lower his bond.
The next time I saw Brandon was on the 14th a few days later. We were in court to argue that his bond should be lowered from $50,000.00 on each case, totaling $100,000.00. We appeared before Judge Bland and argued that Brandon had nothing in his background that would indicate that he would be a flight risk in any way. Further, I argued that he must not be that great of a danger to the public at large, because even Mr. Sullivan’s District Attorney’s Office didn’t have any concerns about arresting or jailing Brandon on these charges for two years. I pointed out to the court that law enforcement hadn’t spent those two years investigating this case, The District Attorney had the same information for two years before they filed these cases, and that their request for a high bond to protect the public from Brandon now was disingenuous at best.
I thought it was a great argument, and for that matter so did Brandon. Unfortunately, Judge Bland wasn’t as enamored with our argument as we were, and he promptly denied our request. Our next opportunity would be at the preliminary hearing, again before Judge Bland.
THE PRELIMINARY HEARINGS
March 27th was our next opportunity to get in court for Brandon. Because he was charged in two separate cases, we were scheduled to have hearings on both cases one after another.
The first case up was an accusation from March of 2016. (The purpose of this is to tell the story of Brandon Boggess. Sexual assault is a serious crime that is often not reported for various reasons, but often because of the shame and fear that a victim of a crime may feel in reporting. This story is in no way an attempt to further shame or discourage victims of sexual assault from coming forward, and for that reason I will never refer to the women that accused Brandon by name, but rather I will refer to them as “Accuser 1” and “Accuser 2”) Accuser 1 took the stand and the State, represented by Ms. Greubel-Ross began her direct examination.
She claimed that Brandon had come to her apartment on the day in question with some other people, and as the other people left, Brandon stayed behind. She claimed that at one-point Brandon began to grab at her and forcibly held her down and raped her. She claimed that afterward, he threatened her life, and she was scared, but did report the incident the following day, spoke to a detective and had an examination performed at the hospital.
Prior to the hearing, Brandon had told me that he had had intercourse with Accuser 1 that day, and shortly after he went to a friend’s apartment nearby, bought some marijuana, and returned to the apartment to smoke it with Accuser 1. When it was my opportunity to cross-examine Accuser 1, I asked her if in fact, that happened. When she said in fact that did happen I was surprised. I had reviewed her statements, and the detective’s report of his interview of her and none of this was documented in any of the paperwork I had received from the State. So, I continued.
According to Accuser 1, after she was violently raped by Brandon and he left her apartment, she went to lock and deadbolt the door. About ten minutes later there was a knock at the door and she used her peephole to confirm it was Brandon returning. She next unlocked the door and invited him back into her apartment where the smoked marijuana and made small talk for about half an hour. She confirmed that the time they spent together talking was pleasant and that Brandon did not threaten her or make her afraid in any way. Then Brandon left the apartment. I concluded my cross-examination with a feeling of being dumb-struck by the incredibleness of Accuser 1’s testimony and the fact that this was not documented in any report to any officer, nurse, or in any written statement.
Next McAlester Police Detective Ken Bethune took the stand. He testified that he received the call about a possible rape, interviewed Accuser 1, and also interviewed Brandon, who denied that he had assaulted Accuser 1 in any way.
When it was my turn to cross-examine Detective Bethune, I began by asking, Detective, you have been present in the courtroom today and heard the testimony of Accuser 1. You must be surprised by her testimony?
No, why would I be surprised., he responded.
Are you telling me that when you interviewed Accuser 1 she told you about my client coming back to the apartment, and visiting for about a half an hour?
Yes., he answered.
I remember feeling a swell of righteous indignation move through every part of my body. “And you didn’t think that was important to put into your report?
No. I didn’t think it was important to the case., he said in a tone so flat the hair on the back of my neck began to stand and twitch. I could not hold back that indignation any longer.
You’re a detective. It is your job to search for the truth and gather evidence despite whether it supports the statement of the accuser or the accused. And you didn’t think that information was important!
This line of questioning set the tone for how the rest of my cross-examination of Detective Bethune would go. With each questioned I chipped away at what appeared to be a short-sided investigation void of any concern for what may have actually happened in that apartment.
The preliminary hearing ended with Judge Bland overruling my request to demurrer (dismiss), and binding Brandon over for trial. As soon as we concluded that hearing we moved on to the next case.
In this case, Accuser 2 took to the stand and describe an incident that she said occurred in February of 2016, actually prior to the other case. Accuser 2 testified that she came to the apartment shared by Brandon and his girlfriend at the time, Brandy. She said that she and Brandy had become friends and they had planned to spend some time together that night. Brandon remained at the apartment while the girls went out. Accuser 2 then said that she and Brandy returned to the apartment sometime that evening around 11 P.M. When they returned Brandon offered to walk down to the EZMart and get them some sodas. According to Accuser 2, Brandon returned and gave each of the girls a soda. A short time later, Brandy said she felt tired and decided to go to bed, but Brandon and Accuser 2 remained in the living room visiting. Accuser 2 then said that Brandon attempted to kiss her, and she told him that she was not that kind of girl and was not interested. She said that was the last thing she remembered and she didn’t wake until 7 P.M. the following day. When she did wake she was on the floor, was wearing different clothing, and felt like she had had intercourse. She claimed she next confronted Brandon and he left the apartment. The following day she reported the incident and had an examination at the hospital.
Of course, the story Brandon had told me was very different and involved a consensual sexual encounter. During my cross-examination, I focused on the things that Accuser 2 had not disclosed about herself. In fact, she was an opiate addict and was so at the time of this alleged incident. She was taking different medications for her addiction including a drug called Suboxone. She testified that she could not recall anything that occurred after turning down Brandon’s advances, and not so subtly suggesting that she may have been drugged by the soda he had given her. Despite her suspicions that she was drugged a simple toxicology was never performed at the hospital when she was examined.
The only other witness the state called were officers that interviewed Accuser 2 and took reports. One of those officers, (then) Detective Chris Morris, did come in contact with Brandon about five days after this alleged incident. According to his report, he asked Brandon if he had had sex with Accuser 2, and Brandon denied that he did. He further had Brandon write just that statement (that he had not had sex with Accuser 2) on a form and sign it. DNA collected from the examination of Accuser 2 would be tested and come back to implicate Brandon as the person that it belonged to.
Again, the preliminary hearing concluded and Judge Bland bound Brandon over for trial. The burden at a preliminary hearing is very low. All the state must show is that a crime may have been committed and it is the defendant that may have committed it. Often times a client may question if losing a preliminary hearing is some kind of a bad sign, when in fact it’s not. The true point of a preliminary hearing is to offer a stop-gap to prevent cases that should never be presented to a jury from getting to a jury. It is also an opportunity for the defense to question the state’s witnesses under oath and establish a record. Because (unless under very narrow circumstances) a criminal defendant is not entitled to depose the State’s witnesses before trial, the record at a preliminary hearing can often be vital to a defense.
Shortly after the preliminary hearing, Brandon decided to hire our firm, a choice any defendant has at any time. His decision would also ensure that he would have not only myself defending him at trial but Blake as well.
The State would have the option as to which case would be tried first, and when we appeared at District Court Arraignment before Judge Tim Mills, they announced that they would proceed first with Accuser 2’s case. The case was set on the September trial docket.
Preparing For Trial
From the moment the preliminary hearings concluded I had already created a roadmap or sorts of things that we needed to look into for trial. For example, Accuser 2 admitted to being under a doctor’s care and even going to a rehabilitation facility for her addiction to opiates. I began filing motions with the court to have those records be provided to us so that we could determine if something from her own behavior might have led to her memory loss that night. Also, I noticed that Brandon and Accuser 2 were not alone that night, and that same person was present and had a front row seat to whatever had occurred when Accuser 2 woke the following day. For some incredible reason, no police officer, prosecutor, nobody had ever spoken with Brandy, Brandon’s then-girlfriend that was present that night.
The truth was that I had been looking for Brandy since prior to the preliminary hearing. When I first got the case, I went to Park Place Apartments hoping that I would find her, or at least someone that knew where she might have moved. I didn’t have any success then, and here we were within weeks of trial and I still hadn’t had any success. On one particular afternoon, I just happened to be in the office reviewing the case file, when I decided I would take another shot and try to find her. I drove to the apartment complex and spoke with the manager. This new complex manager was quite a bit more helpful than the one months before. She looked through her records and found Brandy, but could only tell me that she left the complex more than a year prior.
Frustrated, I returned to the office and tried again to find Brandy through social media. I found some variations of her name and others in the McAlester area that shared her last name. I just started writing to any person that had the same surname in the area and said who I was and that I was looking for Brandy, and left my phone number.
By the following day, I actually received a response by someone on Facebook Messenger, I had almost forgotten why I wrote to so many people. I quickly responded back to the inquiring person, who was not Brandy and asked her to have Brandy call me if she knew her. The person on the other side of the conversation never responded, nor did she confirm if she knew who I was even talking about. After about an hour of waiting for my inbox to ping to life, I gave up and returned to whatever I had been doing.
I couldn’t believe she was on the line. I grabbed the hard-plastic receiver and smashed it to my ear, “Brandy?!”, I said too loudly into the phone. The soft voice on the other end confirmed it was indeed her. Tempering my excitement, the best I can, I quickly ask where she is. She explains that she is walking down the street to a relative’s house. I quickly process in my head that she is approximately seven to eight blocks away from my office right now. “Can you please just stop where you’re at?”, I ask. She tells me she can and I fly out the door, jump into my truck and take off to the intersection she said she was at.
The first thing that Brandy told me was how much dislike she had for Brandon. She wanted to be very clear about that, apparently, their relationship had ended badly. I just asked her if I could read her the statement that I had from Accuser2 that she had written more than two ½ years before. As I read the statement, Brandy began to interrupt me more and more with corrections on how that night went. When we got to the part about Accuser 2 losing her memory and not waking until the following evening, Brandy put her hand to her mouth, and said, “Oh my God, that’s just a lie.”
I asked Brandy if she would be willing to testify, and she confirmed that she would. Despite how much she personally disliked Brandon, nobody should be convicted for something they didn’t do, she said. I gave her day to come by my office and let her know that either myself or Blake would be calling her to testify. I also asked her if anyone from the Police or from the District Attorney’s Office had ever contacted her or took her statement about any of this. “No.”, she said
Part 2 Coming Soon…